by Mitch Kokai
Senior Political Analyst, John Locke Foundation
After reading and listening to much of the hysteria surrounding the U.S. Supreme Court’s ruling in the Hobby Lobby case, Charles C.W. Cooke of National Review Online wonders whether the critics have an inkling of what the nation’s highest court is supposed to do.
Conspicuously absent from [the] post-Hobby Lobby hullabaloo was the acknowledgment on the left that the decision was the product of a court. Distilling into a single line what was a popular and widely disseminated critique, the New York Times’s Nick Kristof tweeted a picture of Justices Kennedy, Roberts, Scalia, Thomas, and Alito, sardonically labeling the quintet as “The experts on women’s health on the Supreme Court who ruled today against contraception coverage.” A few hours later, Senator Harry Reid’s office pushed out an assessment that was cut from the same unlovely cloth. “It’s time that five men on the Supreme Court stop deciding what happens to women,” Reid tweeted. Among the hysterical, that sentiment was ubiquitous.
One cannot help but wonder whether Kristof and Reid are aware of what the Supreme Court actually does — which, as anybody who has even a fleeting grasp of American civics knows, is not to set American policy, on health or anything else, but to interpret and uphold the law. In this particular case, the justices were called to judge whether a mandate that was pushed out by the Obama administration in 2012 was in conflict with another law, the Religious Freedom Restoration Act, that was added to the books in 1992. This being so, the degree to which those who decided the case are “experts on women’s health” is wholly immaterial. The justices are jurists not doctors — they are nine appointed attorneys whose role in the American settlement is to provide legal answers to legal questions. Man or woman; straight or gay; handsome or ugly; Jew, Catholic, or protestant — the law must remain the law, regardless of in whose name its intricacies are decided. The alternative would be disastrous. Does Harry Reid aspire to see Roe v. Wade, which was decided by nine men, overturned?
Identity politics notwithstanding, the central implication of the Kristofs and Reids of the world — that the very involvement of the Court in this area is uncouth — is a rather strange one. The only way that such questions will not end up in the courts is if a political accommodation is reached: If Congress moves to reconcile its incompatible laws; if the Obama administration elects not to push the state into hitherto unthinkable areas; or if the Constitution is amended to render moot the question of what governments may require of the religious. In the absence of such action, the courts will inevitably be asked to intervene.